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THE ATTORNEY GENERAL OF MARYLAND


OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

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ASSISTA.NT,{TTORNEY GENERAL

April 1,2015
The Honorable Kirill Reznik
225 House Offlrce Building
Annapolis, Maryland 21 401 -199

Dear Delegate Reznik:


You have asked for advice conaerning whether Agriculture Article (''A("), Title 5, Subtitles
J and2 would preempt Montgomery County Bill 52- 14. While the matter is not completely clear,
it is my view that the general ban on application of non-essential pesticides may well be preempted,
but that other parts most likely would not be.

Montgomery County Bill 52-14 makes numerous changes to existing Montgomery County
ordinances governing pesticides, and adds some new provisions. It requires the County Executive
to include a list of "non-essential pesticides" in regulations, which is to inclucle all pesticides that
receive certain ratings fiom the federal Environmental Protection Agency, the Ontario, Canada,
Ministry of the Environment, and the European Commission. The regulations are also to contain
a list of invasive species that may be detrimental to the environment in the County.
The bill also makes changes to the sign requirements for pesticide application with respect
to placement and visibility of the signs. The existing requirements apply only to commercial
aplicators. In addition, the bill adds a similar sign requirement for property owners and tenants who
apply pesticides on an area of more than 100 square feet.

The bill bars application of a non-essential pesticide to a lawn. The term lawn applies to
mowed expanses generally, and includes athletic fields, but not golf courses. Exceptions are made
for applications to control weeds listed in the County provision on weecls, to control invasive species,
or pest control while engaged in agriculture, and for the maintenance of a golf course., In additiorr,
it provides that an exception may be granted on request, if it is shown that there are no available
alternatives, that the application will not violate federal or State law, and that the application is
necessary to protect human health or prevent signihcant economic damage. An exception may also
be granted on an emergency basis fr pest outbreaks that pose a threat to human health or are likely
to cause signifcant economic damage.

bill

also bars the use of a non-essential pesticide or neonicotinoid on County property,


except larvicide or rodenticide as a public health masure to reduce the spread of disease vectors.
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The Honorable
April 1,2015

Kirill Reznik

Page 2

This prohibition is subject to exceptions similar to those applicable to public use of non-essential
pesticides. The prohibited pesticides can also be used if the Director of the County Department of
Environmental Protection determines, after consultation with other officials that the use of the
pesticide is necessary to protect human health or prevent imminent and significant economic damage
and that no reasonable alternative is available. This determination must be reported to the County
Council within 30 days.

Finally, the bill would require the Department of Environmental Protection to adopt an
integrated pest management program for property owned by the County and would require the
County Executive to implement a public outreach and education campaign befcire, during and after
implementation of these provisions.
Montgomery County regulation of pesticides dates back to 1985, when the County adopted
point of sale notihcation requirements and sign requirements related to commercial application of
pesticides. In 1985, this office opined that this ordinance was preempted by the Federal Insecticide,
Fungicide, and Rodenticide Act. 70 Opinions of the Attorney Generql l6l (1985),r The federal
district court for Maryland and the Fourth Circuit followed suit. Montgomery Pest Control v.
Montgomery County,646F. Supp. 109 (D. Md, 1986); Maryland Pest Control Associationv. Prince
George's County,822Md.55 (4th Cir. 1987). Ultimately, the Supreme Court disagreed, holding
that federal law permitted pesticide regulation by local jurisdictions as well as by the State itself.
Wisconsin Public Intervenorv. Mortier,50l US 597,607-608 (1991).
In the 1985 Opinion, Attorney General Stephen H. Sachs also addressed whether State law
would not preempt the Montgomery County ordinance and concluded that it would not. The Opinion
stated that the objective of both State law and the ordinance was the safe use of pesticides. Id. at 5.
Moreover, the Opinion found no express preemption and also found that the pesticide law did not
so comprehensively regulate in the area that a court would be compelled to find preemption by
implication. Id. Finally, the Opinion concluded that "there are no State regulations requiring lawn
care businesses to post warning signs or to compel pesticide dealers to give customers safety
inf'ormation; hence there is no conflict between Bill No. 26-85 and State law." Id. Since that time,
however, Maryland law has changed signihcantly, and it now regulates signs and requires that
information be supplied to consumers. Chapter 302 of 1987, adding AG, $ 5-208. Moreover, the
proposed ordinance significantly expands County law. Thus, the 1985 Opinion does not settle the
issue raised here.

As reflected in the 1985 Opinion, there are three ways in which State law may preempt a
local law: 1) preemption by conflict; 2) express preemption; and 3) implied preemption. Talbot

' This opinion also concluded, however, that the regulation of the safe use of pesticides is
plainly within the authority granted to Montgomery County under the Express Powers Act. 70
Opinions of the Attorney General at 163.

The Honorable
April 1,2015
Page 3

Kirill Reznik

Countyv,Skipper,329Md.48l,487-4SS(1993), Preemptionbyconflictariseswhenalocallaw
prohibits an activity which is intended to be permitted by State law, or permits an activity which is
intended to be prohibited by State law. Id. at 487 n. 4. With respect to either express or implied
preemption, "the focus of the inquiry must be on whether the General Assembly has manifested a
purpose to occupy exclusively aparticular field." Ad+Soil, Inc. v. County Commissioners,30T Md.
301,324(19S6). InthiscaseitisclearthatMarylanddoesnothaveexpresspreemptioninthisarea,
though many states apparently do. See Memorandum from Josh Hamlin, Legislative Attorney, to
the Montgomery County Council dated October 24,2014, on Bill 52-14.
Most of the cases that have looked at State preemption in the context of the regulation of
pesticides have found preemption. Most of these rely on field preemption. The cases are not as
helpful as they could be, however, because different states apply different tests as to preemption, and,
of course, the types of regulation that have been attempted at the local level vary greatly. See
Syngenta Seeds, Inc. v. County of Kuai,2014 WL 4216022 (D, Haw. Aug. 25, 2014) (local
ordinance regulating application of restricted use pesticides held preempted by the "global or
comprehensive mechanism for regulating pesticide licensing, sales, use, and enforcement within the
State."); Pesticide Public Policy Foundation v. Village of \4/aucond, 111.,622 F.Supp . 423, 432
(N.D. Ill. 1985) (ordinance requiring user of pesticides to register and obtain local license preempted
by statute setting out "an extensive, detailed, and comprehensive regulatory scheme for the use of
pesticides within the State.") Village of Lacona v. State, Dept. of Agr. and Markels, 858 N.Y.S,2d
833 (2008) (local regulation of field application of pesticides preempted where State offcial has
been given exclusive jurisdiction "in all matters pertaining to the distribution, sale, use, and
transporlation of pesticides."); Minnesota Agr, Airaft Ass'n v. Township of Mantrap, 498 N.W.2d
40,42 (Minn. App. 1993)(expresspreemption);Townof llendellv. AttorneyGeneral,4T6N.E.2d
585 (1985) (local law requiring notice of proposed application and hearing to determine whether it
presents a threat to health, the environment, or safety was preempted because it would "prevent the
achievement of the identifiable statutory purpose of having a centralzed, Statewide determination
ofthe reasonableness of the use of a specific pesticide in particular circumstances."); Ames v. Smoot,
471 N.Y.S.2d I28 (1983) (local regulation on aerial spraying of pesticides preempted by state law
vesting "jurisdiction in all matters pertaining to the distribution, sale, use, and transportation of
pesticides . . . exclusively in the Commissioner of Environmental Conservation."); Town of Slisbury
v. New England Power Company,437 A.2d281,282 O{.H. 1981) (local restriction on the use of
chemical defoliants preempted by comprehensive regulatory scheme); Long Is. Pest Control Assn.
v. Town of Huntington,34l N.Y.S.2d 93 (1973) (requirement that pesticides be registered with town
before use or sale preempted by state law occupying the field of pesticide regulation). The only
exception I have found is Centrql Maine Power Co. v. Town of Lebanon,5Tl A.2d I 189 (Me. 1990)'
In that case, the court found that a local review process for certain types of pesticide use that was
more stringent than state law did not frustrate the purposes of state law and thus was not preempted.
Id. at 1195. That case, however, also involved a statute that expressly preserved some local
authority.

The Honorable
April 1,2015
Page 4

Kirill Reznik

To start with the easy part, it is my view that the County, like any other property owner, has
the right to determine how to deal with pests on its property, so long as the decision does not violate
the law. I believe that this is the case even if it is found that the State has occupied the field of
regulating pesticides, unless the State law expressly requires or prohibits certain actions on the part
of local jurisdictions, Thus, the provisions of the proposed ordinance that prohibit the use of certain
pesticides on county property except in certain circumstances, and the requirement that an integrated
pest management program be developed for use on county property are not preempted.2 It is also
my view that it is within the power of a charter county to require the County Executive to implement
a public education and outreach program on pretty much any subject. The other provisions of the
bill raise more difhcult problems.

Agriculture Arlicle, Title 5, Subtitles 1 and2 contain the State law on pesticides. Section 5104(b) provides that the Secretary of Agriculture ("the Secretary") may determine whether any
pesticide is highly toxic to humans and may subject pesticides to the provisions of $ 5-105 of the
subtitle, which requires registration of each brand or product name of a pesticide before it is
distributed in the State and allows the Secretary to require the submission of toxicological,
environmental, or health effects data that he or she finds appropriate as well. Section 5-104(c)
authorizes the Secretary to adopt , after public hearing, the rules and regulations of the appropriate
agency of the United States government relating to pesticides, if the rules and regulations are
applicable to and conform with the primary standards in the subtitle, The introductory language of
this provision explains that "[u]niform pesticide requirements between the several states and the
federal government are desirable to avoid confusion that endangers the public health and that results
from diverse requirements, particularly relating to the labeling and coloring of pesticides."3 Subtitle
1 also contains requirements about packaging and labeling, and permits the Secretary to issue a stop
sale order if a violation is found to cause unreasonable adverse effects to humans, animals, or the
environment, or is in violation of federal pesticide laws or regulations. AG $$ 5-106 and 5-108.

Agriculture Article, Subtitle 2 requires the Secretary to adopt regulations governing the
storage, sale, distribution, exchange, use, and disposal ofpesticides and containers, $ 5-204(I),

To the extent that the integrated pest management provision is applied to county property
that is being used for a school, the program would also have to comply with the "uniform standards
and criteria" developed by the State Department of Agriculture under AG $ 5-208.1(c).

3Thecourt inAmesv. Smoot,47l N.Y.S,2d128 (1983)reliedonasimilarprovisioninNew


York law in finding that local regulations were preempted, saying "lf the enhancement of national
uniformity is a signihcant target of article 3 3, it would be a peculiar interpretation to view the statute
as permitting New York's 62 counties, 929 towns, 556 villages and 62 cities (see NY St Legis
Manual, 1980-1981, pp 956-1007) to adopt their own regulatory schemes concerning the use of
pesticides within their geographical limits." See also Pesticide Public Policy Foundationv. Village
ofWauconda, 1 1.,622 F.Supp.423,430 C{.D, Ill. 1985).

The Honorable
April 1,2015
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Kirill Reznik

prescribe, when necessary, the time and conditions under which a pesticide may be sold, distributed,
exchanged, or used in different areas of the State, 5-204(2), provide that extremely hazardous
pesticides may be sold, distributed, exchanged, or applied only when special permission first is
obtained from the Secretary, $ 5-204(3), define the formulations and establish the conditions and

appropriate areas for application of any pesticide, $ 5-204(4), and establish guidelines and
regulations for the application of pesticides and require the keeping and submission of records, $ 5204(5) and (8). Subtitle 2 also regulates the information to be provided to customers when the
pesticide is applied, $ 5-208(a) and the placement and nature of signs to be posted when pesticides
are applied, $ 5-208(c). The law also classif,res cyclodiene termiticides as restricted pesticides. AG
s s-210.5(b).
This law is in many ways similar to some of those that have been found to preempt local law
by implication. It is not clear, however, that it should be read to have that result, at least not with
all of the provisions of Bill 52-14.

A portion of Bill

52-14 requires the County Executive to make a list of non-essential


pesticides and a list of invasive species. There is no similar requirement imposed on the Secretary
or any other State official. Moreover, this provision is necessary to implement the prohibition of the
use of non-essential pesticides on County property, which is not preempted. As a result, it is fair to
conclude that this provision is not preempted.
The bill also adds a sign requirement for property owners and tenants who apply pesticides
on an area of more than 100 square feet. The State law relating to signs applies only to licensees and
public agency permittees. AG $ 5-208(cX1). Licenses are issued to places of business that engage
in the business of pest control or pest control consulting. AG $ 5-207(e). A public agency applicator
is a person employed by a unit of federal, State, county or local government or any training
institution which is engaged in pest control. AG $ 5-201(p). Thus, it does not apply to property
owners and tenants. As a result, this provision would not conflict with State law and does not
regulate in an area that has clearly been occupied by State law.

Finally, the bill bars application of a non-essential pesticide to a lawn. subject to certain
exceptions. This is, in my view, the provision that is most likely to be found to be preempted. As
noted above, the Secretary has the power to regulate the sale, distribution, and use of pesticides, to
set the time and conditions under which a pesticide may be sold or used in different areas of the
State, to limit the sale and application of extremely hazardous pesticides, and establish the conditions
and appropriate areas for application of any pesticide. The Secretary also may, "lflor purposes of
uniformity and in order to enter into cooperative agreements, adopt use classification and other
pertinent pesticide regulation provisions that are established by the U,S. Environmental Protection
Agency." AG $ 5-204(13). It is my view that a court could conclude that this provision would
interfere with the purposes of these State provisions, as well as the goal of achieving uniformity.

The Honorable
April 1,2015
Page 6

Kirill Reznik

Y,

M. Rowe
Assistant Attorney General

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